Garcia Razo et al v. U.S. Dept.of State et al

Filing 29

ORDER signed by District Judge John A. Mendez on 4/24/19 DENYING 18 Plaintiff's Motion for Summary Judgment and GRANTING 19 The Government's Motion to Dismiss. CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN GARCIA RAZO and DULCE SOTO,

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No.

2:18-cv-01569-JAM-DB

Plaintiffs,
v.

ORDER DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANTS’
MOTION TO DISMISS

UNITED STATES DEPARTMENT OF
STATE, et al.,
Defendants.

Plaintiffs Juan Garcia Razo and Dulce Soto filed this

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lawsuit following denial of Garcia Razo’s visa application.

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First Am. Compl. (“FAC”).

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Mot. Summ. J., ECF No. 18, and the Government moves for

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dismissal, Mot. Dismiss, ECF No. 19.

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below, the Court DENIES Plaintiff’s motion and GRANTS the

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Government’s motion.1

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I.

Plaintiffs move for summary judgment,

For the reasons set forth

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Soto is a United States citizen and Plaintiff

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Garcia Razo is a citizen of Mexico.

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married for four years and have four children together, all of

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whom are United States citizens.

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FAC ¶ 2.

They have been

FAC ¶ 3.

After they married in 2014, Garcia Razo sought to obtain
1 This motion was determined to be suitable for decision without oral
argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for March 19,
2019.

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Lawful Permanent Resident status based on his marriage to a U.S.

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citizen.

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United States to attend his immigrant visa interview with the

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United States Consulate in Ciudad Juarez, Chihuahua, Mexico.

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¶ 5.

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Provisional Unlawful Presence Waiver from the United States

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Citizenship and Immigration Services (“USCIS”).

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FAC ¶ 4.

On February 6, 2018, Garcia Razo left the

FAC

Prior to his departure, Garcia Razo had received an I-601A

Id.

The United State Consulate in Ciudad Juarez denied Garcia
Razo’s visa and prohibited his return to the United States on

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February 9, 2018.

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Garcia Razo was inadmissible under two statutory provisions:

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(1) departure from the United States after more than a year of

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unlawful presence, 8 U.S.C. § 1182(a)(9)(B)(i)(II); and

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(2) reentrance into the United States without admission after

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more than one year of unlawful presence, 8 U.S.C.

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§ 1182(a)(9)(C)(i)(I).

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FAC ¶ 6.

The consular officer found that

Id.

Garcia Razo first entered the United States from Mexico

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without inspection on February 26, 2004, at age 16.

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When he was 17, Garcia Razo returned to Mexico on November 27,

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2005 after 17 months in the United States.

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2007, Garcia Razo again entered the United States without

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inspection and stayed until departing for his February 2018 visa

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interview in Ciudad Juarez.

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Id.

FAC ¶ 7.

On March 7,

Id.

Plaintiffs filed this action on May 29, 2018, bringing three

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claims arising under the Immigration and Nationality Act (INA),

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Fifth Amendment to the United States Constitution, and the

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Administrative Procedure Act (APA).

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seek a declaration that the basis upon which the Government
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FAC ¶¶ 55–83.

Plaintiffs

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denied Garcia Razo a visa violated the INA.

FAC at 13.

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Alternatively, Plaintiffs seek a declaration that USCIS failed to

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provide adequate notice to Garcia Razo regarding his visa

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inadmissibility.

Id.

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II.

OPINION

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A.

Plaintiffs’ Challenge to the Denied Visa Application

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Plaintiffs’ first claim argues that it was unlawful to deny

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Garcia Razo’s visa application under 8 U.S.C.

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§ 1182(a)(9)(C)(i)(I).

FAC ¶¶ 55–65.

The Government moves to

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dismiss this claim, and the remainder of the complaint, based on

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the doctrine of consular nonreviewability.

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Mot. Dismiss at 6–12.

The doctrine of consular nonreviewability limits judicial

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review of a consular official’s decision to grant or deny a visa.

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Allen v. Milas, 896 F.3d 1094, 1108–09 (9th Cir. 2018).

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doctrine is rooted in Congress’s plenary power to regulate

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immigration.

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(1972); U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543

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(1950).

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issue or withhold visas and exempts that determination from the

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Secretary of State’s review.

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Levin, 800 F.2d 970, 971 (9th Cir. 1986) (citing 8 U.S.C.

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§§ 1101(a)(9), (16); 1201; 1104(a)).

The

See Kleindienst v. Mandel, 408 U.S. 753, 769–70

Specifically, the INA authorized consular officials to

Li Hing of Hong Kong, Inc. v.

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The Supreme Court identified that a limited exception to the

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doctrine of consular nonreviewability arises when the visa denial

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implicates a constitutional right of an American citizen.

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Mandel, 408 U.S. at 769–70.

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court] can review the merits of a consular officer’s denial of a

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visa is for constitutional error, where the visa application

Thus, “the only standard by which [a

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[was] denied without a ‘facially legitimate and bona fide

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reason.’ ”

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769).

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Kerry v. Din, 134 S.Ct. 2128, 2140 (2015), if a visa denial is

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based on a facially legitimate and bona fide reason, “ ‘courts

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will neither look behind the exercise of that discretion, nor

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test it by balancing its justification against’ the

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constitutional interests of citizens the visa denial might

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implicate.”

Allen, 896 F.3d at 1097 (quoting Mandel, 408 U.S. at

As Justice Kennedy explained in his concurring opinion in

Id. (quoting Mandel, 408 U.S. at 770). See also

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Trump v. Hawaii, 138 S. Ct. 2392, 2419 (2018) (reaffirming that

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courts should not examine or test the Executive’s exercise of

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delegated power to exclude foreign nationals if facially

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legitimate and bona fide).

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Plaintiffs contend that the doctrine of consular

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nonreviewability does not apply for three reasons.

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challenges of statutory interpretation.

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Plaintiffs assert that the doctrine does not apply because the

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consulate’s decision to deny Plaintiff Garcia Razo’s visa was not

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facially legitimate and bona fide.

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challenge application of the doctrine to their claims against

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USCIS regarding the I-601A Waiver.

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that no material facts are in dispute.

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Pls. Opp’n at

First, they argue that the doctrine does not apply to
Id. at 5–12.

Id. at 12–15.

Id. at 15.

Next,

Finally, they

The parties agree

1. Statutory Interpretation

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Plaintiffs rely primarily on Singh v. Clinton, 618 F.3d 1085

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(9th Cir. 2010) for their assertion that the Court may review the

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denial of Garcia Razo’s visa application.

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repeatedly assert they are challenging an official State
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While Plaintiffs

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Department policy, the evidence presented shows they are

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challenging a consular official’s interpretation of the statute

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as applied to the facts present in Garcia Razo’s application.

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the Ninth Circuit has noted, Singh concerned a suit against the

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State Department for failure to follow the INA and its own

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regulations when terminating an existing visa, rather than a

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consular officer’s adjudication of the noncitizen’s visa

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application.

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different circumstances, under which there was no consular

Allen, 896 F.3d at 1108.

As

Singh presents markedly

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decision to which the doctrine would apply.

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added the State Department as a defendant does not change the

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basis for their underlying claims.

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officer that denied Garcia Razo’s application as a defendant and

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their first claim challenges how the officer interpreted and

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applied the INA in adjudicating Garcia Razo’s visa application.

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FAC ¶¶ 17, 35.

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statutory interpretation distinct from a consular officer’s

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discretionary determinations, and Singh does not aid the Court in

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its determination.

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That Plaintiffs

They named the consular

This case does not present a question of

The Court finds the Government’s reliance on Allen v. Milas,

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896 F.3d 1094 (9th Cir. 2018) to be more persuasive.

In Allen,

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as here, an American citizen challenged denial of his noncitizen

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spouse’s visa application by a consular officer.

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1097–98.

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committed legal error in interpreting the INA, seeking review of

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the officer’s decision under the APA.

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affirmed the district court’s dismissal, finding that the APA did

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not provide a means by which to review a consular officer’s

896 F.3d at

The plaintiff argued that the consular officer

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Id.

The Ninth Circuit

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adjudication of a visa on the merits.

Id. at 1108.

Accordingly, the Court finds that the doctrine of consular

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nonreviewability applies to Plaintiffs’ visa claims so long as

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the visa denial was based on a facially legitimate and bona fide

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reason.

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Din, 134 S.Ct. at 2140.
2. Facially Legitimate and Bona Fide Reason

Consular officers are “charged with adjudicating visas under

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rules prescribed by law,” and may not issue a visa if they know

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or have reason to believe that the applicant is ineligible to

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receive a visa under any provision of law.

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1107 (citing 8 U.S.C. § 1201(g)(3)).

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application, the consular officer must cite to a statutory basis

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of ineligibility, relying on a bona fide factual basis for that

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denial.

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Allen, 896 F.3d at

When denying a visa

Din, 135 S. Ct. at 2140 (Kennedy, J., concurring).

The Court finds that the reasons provided by the consular

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officer were facially legitimate and bona fide.

The consular

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officer’s decision to deny Garcia Razo’s visa application

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provided two statutory bases: (1) Garcia Razo was inadmissible

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under 8 U.S.C. § 1182(a)(9)(C)(i)(I) based on his entry without

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inspection in 2007, after having been unlawfully present in the

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United States for a period in excess of one year; and (2) Garcia

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Razo was inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II) based

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on the period of unlawful presence in the United States between

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2007 and 2018, as the finding under 8 U.S.C.

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§ 1182(a)(9)(C)(i)(I) automatically revoked his I-601A Waiver.

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FAC ¶ 6.

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The consular officer’s first reason for Garcia Razo’s

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inadmissibility, 8 U.S.C. § 1182(a)(9)(C)(i)(I), was legitimate
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and bona fide.

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who have repeatedly entered the country without inspection:

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(C) Aliens unlawfully present after previous immigration
violations
(i) In general

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Any alien who—

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(I) has been unlawfully present in the United
States for an aggregate period of more than 1
year, or

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(II) has been ordered removed under section
1225(b)(1) of this title, section 1229a of this
title, or any other provision of law,

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This portion of the INA references individuals

and who enters or attempts to reenter the United States
without being admitted is inadmissible.

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8 U.S.C. § 1182(a)(9)(C)(i).

Subsection (C) contains a single

exception and a waiver provision, neither of which is applicable
here.

8 U.S.C. § 1182(a)(9)(C)(ii)–(iii).

The consular officer

had a good faith reason to believe that Garcia Razo entered the
United States without inspection in February 2004, left in
November 2005, and reentered the United States without inspection
in March 2007.2
Plaintiffs argument that the consular officer’s decision was
not legitimate or bona fide because it did not apply a subsection
(B) exception to subsection (C) is unpersuasive.

The Ninth

Circuit previously declined to impose a similar interpretation of
the interaction between these two subsections.

Acosta v.

Gonzales, 439 F.3d 550, 557–58 (9th Cir. 2006), overruled on
2 To the extent that Plaintiffs base their argument on a post-decision
email from the State Department containing a typo—"November 2004” instead of
November 2005—the undisputed facts support the consular officer’s
determination that November 2005 was the correct date that Garcia Razo first
departed from the United States.

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other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th

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Cir. 2012) (en banc).

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the waiver provision of subsection 1182(a)(9)(B) did not apply to

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subsection 1182(a)(9)(C), even though the two subsections shared

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the same general meaning of “unlawful presence.”

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(holding § 1182(a)(9)(C) did not incorporate the “hardship”

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waiver of § 1182(a)(9)(B)).

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inapplicability of subsection (B) waivers to subsection (C)

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applies with equal force to the respective exceptions within

In Acosta, the Ninth Circuit found that

439 F.3d at 557

Acosta’s reasoning regarding the

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subsection (B).

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exceptions, tailored to the above clauses.

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relevant exception, 8 U.S.C. § 1182(a)(9)(B)(iii)(I), the plain

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language specifically states that the minor exception applies

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“under clause (i).”

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officer’s determination—that Garcia Razo did not qualify for a

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subsection (B) minor exception for inadmissibility under

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subsection (C)—was illegitimate or made in bad faith.

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Each subsection provides its own waivers and
In the case of the

There is no evidence that the consular

The consular officer’s second determination, under 8 U.S.C.

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§ 1182(a)(9)(B)(i)(II), was similarly based on a legitimate and

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bona fide reason.

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The relevant portion of the INA provides:

(B) Aliens Unlawfully Present

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(i) In general

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Any alien (other than an alien lawfully admitted for
permanent residence) who—

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(I) was unlawfully present in the United States for
a period of more than 180 days but less than 1 year,
voluntarily departed the United States (whether or
not pursuant to section 1254a(e)2 of this title)
prior to the commencement of proceedings under
section 1225(b)(1) of this title or section 1229a
of this title, and again seeks admission within 3
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years of the date of such alien's departure or
removal, or
(II) has been unlawfully present in the United
States for one year or more, and who again seeks
admission within 10 years of the date of such
alien’s departure or removal from the United
States,
is inadmissible.

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8 U.S.C. § 1182(a)(9)(B)(i).

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The subsection defines “unlawful

presence” as:

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(ii) Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be
unlawfully present in the United States if the alien is
present in the United States after the expiration of the
period of stay authorized by the Attorney General or is
present in the United States without being admitted or
paroled.

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8 U.S.C. § 1182(a)(9)(B)(ii).

Subsection (B) includes five

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exceptions to applicability, a tolling mechanism, and a waiver

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provision.

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subsection (B)’s exemptions excludes the period of time that an

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individual was a minor from the unlawful presence calculation in

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8 U.S.C. § 1182(a)(9)(B)(i).

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(“No period of time in which an alien is under 18 years of age

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shall be taken into account in determining the period of

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unlawful presence in the United States under clause (i).”).

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Based on the undisputed facts, the consular officer had a good

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faith reason to believe that Garcia Razo entered the United

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States without admission in 2007 and resided in the United

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States for more than a year after that entry.

8 U.S.C. § 1182(a)(9)(B)(iii)–(v).

One of

8 U.S.C. § 1182(a)(9)(B)(iii)(I)

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Had this been Garcia Razo’s reason for inadmissibility, his

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I-601A Waiver would have covered it.

Yet because Garcia Razo’s

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I-601A Waiver revoked automatically following the finding of

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admissibility under subsection (C), 8 C.F.R. § 212.7(e)(14)(i),

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the consular officer determined that his request for admission

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took place within ten years of being unlawfully present in the

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United States.

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considered Garcia Razo’s presence as a minor in the subsection

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1182(a)(9)(B)(i) unlawful presence calculation or that the

There is no allegation that the consular officer

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consular officer who denied the visa acted in bad faith.

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Court does not find that the consular officer’s citation to

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subsections 1182(a)(9)(B)(i) and 1182(a)(9)(C)(i) was improper.

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Thus, because the consular officer’s determination was

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facially legitimate and made in good faith, the doctrine of

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consular nonreviewability applies to the denial of Garcia Razo’s

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visa application.

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B.

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The

Plaintiffs’ Challenges to the Revoked I-160A
Provisional Waiver

Plaintiffs’ second and third claims focus on the revocation

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of Garcia Razo’s I-601A Waiver.

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asserts it was unlawful for USCIS to terminate the I-601A Waiver.

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FAC ¶¶ 66–70.

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warned Garcia Razo that he was inadmissible under 8 U.S.C.

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§ 1182(a)(9)(C)(i)(I) prior to approving his I-601A Waiver.

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¶¶ 71–83.

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be denied as moot.

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FAC ¶¶ 66–83.

The second claim

The third claim asserts that USCIS should have

FAC

The Government contends that these two claims should

Garcia Razo’s I-601A Waiver was approved and mailed to him
in February 2017.

Tolchin Decl., Ex. C, ECF No. 14, p. 15.
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The

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Waiver explicitly states, “NOTE: The approval of your provisional

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unlawful presence waiver only covers the grounds for

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inadmissibility for unlawful presence in the United States under

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section 212(a)(9)(B)(i)(I) and (II)” of the INA.

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further provides that a consular officer’s finding of any other

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grounds of inadmissibility will “automatically revoke[]” the I-

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601A Waiver.

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states that approval of the waiver “DOES NOT: Address any other

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grounds of inadmissibility besides unlawful presence; for

Id.

Id.

The form

Finally, in its limitation section, the form

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example, criminal grounds, fraud, or prior removals.”

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terms and limitations are stated in plain language and printed in

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legible font of a reasonable size.

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argument, the single page form does not “bury” the limitations in

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“confusing, boilerplate language.”

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directly apprise a recipient that the waiver only applies to a

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single ground of inadmissibility—8 U.S.C. § 1182(a)(9)(B),

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inadmissibility based on a period of unlawful presence—and that

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the waiver revokes automatically if the consular officer

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determines there are any other grounds for inadmissibility.

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Id.

Id.

The

Contrary to Plaintiffs’

Rather, these provisions

The form’s provisions accurately reflect the implementing

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regulations for issuance and revocation of a I-601A Waiver.

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Those regulations state:

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The approval of a provisional unlawful presence waiver
is revoked automatically if:
(i) The Department of State denies the immigrant
visa application after completion of the immigrant
visa interview based on a finding that the alien is
ineligible to receive an immigrant visa for any
reason other than inadmissibility under section
212(a)(9)(B)(i)(I) or (II) of the Act.
This
automatic revocation does not prevent the alien
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from applying for a waiver of inadmissibility for
unlawful presence under section 212(a)(9)(B)(v) of
the Act and 8 CFR 212.7(a) or for any other relief
from inadmissibility on any other ground for which
a waiver is available and for which the alien may
be eligible;

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8 C.F.R. § 212.7(e)(14).

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that Garcia Razo was inadmissible under a section other than

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section 212(a)(9)(B)(i)(I) or (II), the regulations provided for

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automatic revocation of Garcia Razo’s I-601A Waiver.

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the undisputed facts, Plaintiffs cannot succeed on their second

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claim because the Government’s action was neither arbitrary nor

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capricious, and was otherwise in accordance with law.

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U.S.C. § 706(2).

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dismissed.

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Because the consular officer determined

Based on

See 5

Accordingly, Plaintiffs’ second claim must be

As for Plaintiffs’ third claim, there is a marked absence of

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legal support in their favor.

None of the cases cited by

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Plaintiffs support their argument that USCIS must provide advance

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notice of a waiver applicant’s ineligibility for a visa.

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Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998), the Ninth Circuit

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recognized that a due process violation may arise when the

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government affirmatively misleads a noncitizen as to the relief

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available to him or her.

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evidence the Government misled Plaintiffs.

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“lull[ed] . . into a false sense of procedural security,”

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Walters, 145 F.3d at 1043, where the waiver plainly stated that

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it only covered one type of inadmissibility, and that any other

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type of inadmissibility would result in the waiver’s automatic

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revocation.

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from other sources, the Government is not the cause of their

See id. at 1043.

In

Here, there is no
Plaintiffs were not

While they may have received incorrect legal advice

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confusion.

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The Supreme Court’s opinion in Mullane v. Central Hanover

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Bank & Trust Company, 339 U.S. 306 (1950) affirmed that an

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“elementary and fundamental requirement of due process in any

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proceeding which is to be accorded finality is notice reasonably

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calculated, under all the circumstances, to apprise interested

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parties of the pendency of the action and afford them an

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opportunity to present their objections.”

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waiver satisfied Mullane requirements: it gave notice “of such

Id. at 314.

Here, the

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nature as reasonably to convey the required information” and it

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“afford[ed] a reasonable time for those interested to make their

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appearance.”

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Razo that his inadmissibility under subsection 1182(a)(9)(B)(I)

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or (II) was waived unless the consular officer determined there

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were any other grounds of inadmissibility.

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the waiver reasonably conveyed this information.

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a year between the waiver’s approval and Garcia Razo’s departure

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to consider the limitations of the waiver and whether Garcia Razo

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was inadmissible under any other grounds.

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provided Plaintiffs with adequate notice of the I-601A Waiver’s

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approval and limitations.

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that USCIS acted arbitrarily or capriciously, or that USCIS’s

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conduct was contrary to law, Plaintiffs’ third claim must be

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dismissed.

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///

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///

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///

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///

Id.

The approved I-601A Waiver apprised Garcia

The plain language of
Plaintiffs had

In sum, the Government

Accordingly, as there is no evidence

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III. ORDER

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For the reasons set forth above, the Court DENIES

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Plaintiffs’ Motion for Summary Judgment and GRANTS the

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Government’s Motion to Dismiss with prejudice.

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IT IS SO ORDERED.
Dated: April 24, 2019

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